Colony Insurance v. Peachtree Construction, Ltd.

EMILIO M. GARZA, Circuit Judge:

Appellants Peachtree Construction, Ltd. (“Peachtree”) and Great American Insurance Company (“Great American”) appeal the district court’s grant of summary judgment in favor of Appellee Colony Insurance Company (“Colony”). Great American also appeals the lower court’s Fed. R.Civ.P. 12(b)(6) dismissal of Great American’s complaint in intervention.

This appeal raises two issues: (1) whether, under Texas law, an insurer’s duty to indemnify an insured is subordinate to the insurer’s duty to defend that insured; and (2) whether an excess-liability insurer can maintain…